Memorandum by the Attorney General
I undertook to consider further a number of
points which arose in the course of my evidence to the Committee
on 3 February.
I was asked (question 239) to consider what
formulation would describe those activities of Parliament from
which privilege (and Article 9 of the Bill of Rights in particular)
might satisfactorily be disapplied.
I agree with the Chairman that the phrase "for
contractual and commercial capacity" might be rather loose.
I suspect also that it would not cover those cases where the corporate
officer is sued in tort (negligence, for example). Arguably, privilege
should not obstruct litigation brought on that kind of liability
any more than on liability pursuant to a commercial contract.
Primary legislation would be needed to remove
or qualify privilege in the way contemplated by the Committee,
and the wording of the legislation would of course be a matter
for Parliamentary Counsel. Counsel might, however, be asked to
provide that privilege and Article 9 do not apply to anything
said or done in the consideration of:
any matter for which the corporate officers are
any matters relating to the employment of persons
in the service of Parliament or of either House.
I have also given some thought to an alternative
possibility of defining those classes of legal proceedings in
which privilege and Article 9 should have no effect. At first
sight, this is an attractive option. For example, privilege and
Article 9 might be excluded altogether from proceedings brought
by or against the corporate officer; or proceedings brought by
or against the House of Commons Commission.
The difficulty, I think, is that parties to
such proceedings could raise, as a tangential or collateral issue,
a matter debated in Parliament in its deliberative or legislative
capacity and one to which privilege probably should attach. My
tentative view is that the absolute protection of Parliament's
core dealings, assuming that is the intention of the Committee,
cannot be safely achieved by reference to classes of legal proceedings.
I was asked (question 243) whether there might
be a middle way whereby a Member's right not to respond to a subpoena
is qualified, without obstructing Parliamentary business.
The privilege could be limited to sitting days.
Beyond that, a feasible middle way has not occurred to me. Defining
what kind of evidence a Member may or may not be required to give
would introduce a legal test on which the courts would have to
adjudicate. That exercise would, it seems to me, be inconsistent
with the principle of Members having an absolute immunity from
the subpoena process.
I was also asked (question 247) about the frequency
with which the problem of subpoenas arise.
I have consulted the Clerk of the House of Commons,
as requested. He has very helpfully told me that, so far as he
knows, there is no central record of all occasions on which Members
are served with subpoenas. Nor does his office usually know when
a Member who has received one succeeds in private negotiations
and does not appear in court by agreement. He does have information
on those occasions when the Speaker or the Clerk are approached
so that it can be made clear formally to a court that the privilege
exists and the Member in question wishes to assert it. Between
September 1996 and the present, the Clerk knows of seven such
cases: in one of them, the Member first claimed the privilege
but later agreed to attend court.
The Clerk believes that this figure is typical
for such a period.
I offered (in response to question 257) to look
into the question of whether a prosecution could rely on the fact
of a Member having said something in Parliament. In particular,
I mentioned the case of Mr Duncan Sandys.
I have had the opportunity of looking at my
Department's file on Mr Sandys (which I have now returned to the
Public Records Office, where its reference is LO/3/128).
Mr Sandys was a territorial army officer and
a Member of the House. He was not, as I had thought, prosecuted;
but he complained that he had been threatened with prosecution
for refusing to divulge his sources of information for a question
he had put down about a shortage of anti-aircraft equipment. A
Select Committee considered his case: HC 101 (1938-39), and its
report was adopted by the House.
If the House were to follow that precedent,
it seems that a prosecution for words used in the course of Parliamentary
proceedings would be regarded by the House as a breach of privilege
and contrary to Article 9.
Advice on this subject was given to the Committee
by my distinguished predecessor Sir Donald Somervell in 1939:
I have annexed to this memorandum a copy of Sir Donald's memorandum.
I would respectfully agree with his conclusion at page 8 that
a statement by a Member in the course of debate or proceedings
in Parliament, which would otherwise amount to an unlawful disclosure
under the Official Secrets Acts 1911 and 1920, could not be made
the subject of proceedings in the courts. The same must be true,
I think, for the Official Secrets Act 1989.
The Committee will note that Sir Donald was
unwilling to be dogmatic about a prosecution under section 6 of
the Official Secrets Act 1920. Under that section, an offence
is committed if a person fails to furnish information about a
suspected offence under section 1 of the 1911 Act (spying). The
question would arise where the evidence that a Member has the
relevant information is contained in a speech he or she has made
I cannot be any more certain than Sir Donald
was in 1939; but I would make two observations. First, section
6 is not a much used provision. Second, the evidential difficulties
described by Sir Donald on page 5 would, in my view, be formidable.
24 February 1998
Sir Donald Somervell's memorandum (1939)
I received from your Secretary a letter in which
he gave me a general indication of the form which the Committee
would desire this Memorandum to take. I have endeavoured to follow
this direction. I set out first the main provisions and effect
of the Offical Secrets Acts. I follow this with a statement as
to the nature of Parliamentary Privilege and in particular the
Privilege of Freedom of Speech. I then give my views as to the
effect of Privilege on action by Members of Parliament which but
for the existence of Privilege would render them liable to proceedings
under the Acts.
Summary of the provisions of the Official Secrets
Acts, 1911 and 1920. I should make it clear that I set out below
in general terms the main effect of the relevant sections, omitting
a good deal of detail.
(a) Section 1 of the Act of 1911 as amended
by the Act of 1920. Marginal note. "Penalties for spying."
This section makes it a felony for any person to obtain or communicate
secret documents or information for a purpose prejudicial to the
safety or interests of the State, the documents or information
being such as might be useful to an enemy.
(b) Section 2 of the Act of 1911 as amended
by the Act of 1920. Marginal note. "Wrongful communication
etc of information." This section makes it a misdemeanour:
(i) for those holding or having held
office under His Majesty or for Government contractors or their
employees to communicate without authorisation official documents
or information in their possession.
(ii) for others to receive such information voluntarily
if they have reason to believe it is being communicated to them
in contravention of the Act.
(iii) for others having received information
as in (ii) above to communicate it without authorisation to any
person other than a person to whom it is their duty in the interests
of the State to communicate it.
Broadly speaking this section covers all cases
of unauthorised disclosure of official information in which the
espionage purpose is absent. It is of course possible to think
of very serious cases connected with foreign affairs, financial
or other secrets which would come under this section.
(c) Section 7 of the Act of 1920 makes it
an offence to solicit or incite a person to commit an offence
under the Act.
(d) Section 6 of the Act of 1920. Marginal
note: "Duty of giving information as to commission of offences."
This section imposes a duty on every person to give on demand
to a Chief Officer of Police or other specified person any information
in his power relating to an offence or suspected offence under
It provides for the attendance of persons
on payment of their reasonable expenses and makes a failure to
attend or to give the information a misdemeanour.
The Acts, like the rest of the Criminal Law,
apply to Members of Parliament apart from Privilege. Parliamentary
Privilege is of course part of the law of the land. The disputes
that have taken place between Parliament and the Courts have been
as to the extent of Privilege and not as to its character as law.
Cases involving Privilege may come before the ordinary Courts.
They may also be decided and are normally decided by whichever
House of Parliament is concerned, and punishment may in a proper
case be inflicted by the House. In dealing with cases of Privilege
the House is expounding and applying as a Court the law of Parliament
as found in existing principles and precedents. The Law of Privilege
is to be found partly in Acts of Parliament defining Privileges,
partly in the declarations and decisions of Parliament dealing
with Privilege, and partly in decisions of the Courts in cases
involving points of Privilege. As long ago as 1704 a Resolution
of the House of Lords was assented to by the House of Commons
to this effect:
"That neither House of Parliament have power,
by any vote or declaration, to create to themselves new privileges
not warranted by the known laws and customs of Parliament."
The cases which I am asked to consider are those
in which words are spoken or written which, if not protected by
Privilege, would be punishable as an offence against the Official
Secrets Acts. The relevant Privilege is that usually referred
to as the Privilege of Freedom of Speech, though it does not merely
apply to spoken words. It is a privilege which was asserted and
recognised at a very early stage in the history of Parliament.
Although older than the Bill of Rights it is declared therein
"That the freedom of speech and debates
or proceedings in Parliament ought not to be impeached or questioned
in any Court or place out of Parliament."
Parliament itself can of course control the
exercise of the right in any way it thinks proper. "But,
although by the ancient custom of Parliament and the law, a Member
may not be questioned out of Parliament, he is liable to censure
and punishment by the House itself of which he is a Member."
(Erskine May p 107.)
I will consider the case of a Member who in
the course of debate or proceedings in Parliament made a disclosure
which, apart from Privilege, would constitute an offence under
the Acts. The hypothetical disclosure might, for example, be by
a Member who was holding or had held office under the Crown, of
information which he had obtained in that capacity. It might be
by a Member who, without holding or having held such an office,
had reasonable ground to believe that the information which he
was disclosing had been obtained in contravention of the Acts.
Such statements could not in my view be made
the subject of proceedings in the Courts. To do so would I think
be to question in a "Court or place out of Parliament"
"debates and proceedings in Parliament".
Issues of Privilege of a somewhat different
kind might in certain circumstances arise under section 6. That
section is only of course brought into operation if it is clear
or thought to be clear, first that a person has information relevant
to the investigation of an offence or suspected offence, and secondly
that he is unwilling to give the information voluntarily. Assume
that it was clear from a speech made by a Member in Parliament
that he had information relevant to an offence which on inquiry
he refused to volunteer. Would he be protected by Privilege from
the operation of section 6?
If he refused to answer and proceedings were
taken to punish him for refusal the prosecution might fail to
show that he had relevant information unless they could give evidence
of his statement in Parliament. The authorities are not clear
but it may well be that, without the permission of Parliament,
there would be difficulty in getting this evidence before the
Court. There is however a further point quite apart from this
difficulty. Could it be said that such proceedings were precluded
in principle by the Privilege of Freedom of Speech? It might be
said on the one hand that the prosecution was not "impeaching"
or "questioning" anything done in Parliament. It was
proceeding against the Member for failing to fulfil out of Parliament
the duty of giving the information which Parliament itself had
directed should be given.
It might be said on the other hand that the
Member found himself interrogated by the Police and subsequently
in the dock as a result, though an indirect result, of what he
said in debate and that this was contrary to the principal of
freedom of speech as formulated in the Bill of Rights and illustrated
by the precedents.
How the Court or either House might decide this
question should it ever arise is a question on which owing to
its difficulty I ought not to be dogmatic. If such a case should
ever arise and the authorities felt that the Member was not or
might not be protected by Privilege, I find it difficult to imagine
the Police being authorised to interrogate unless the very gravest
issues were involved.
I have done my best to set out concisely the
principle which appear to me to be applicable to this matter in
a form which I hope is that desired by the Committee. There has
so far as I know been no prosecution of a Member of Parliament
under the Official Secrets Acts. The question might arise whether
acts done by a Member contrary to the Statute but not protected
by Privilege might be so related to his duties as to make a prosecution
improper or oppressive. It would I think, for reasons which the
Committee will appreciate, be inappropriate for me to propound
hypothetical circumstances and then state what decision I think
should be come to upon them. Assuming however that in such a case
the machinery for the consideration of proceedings was set in
motion, the consent of the Attorney-General in England or the
Lord Advocate in Scotland would have to be obtained. It would
be impossible to formulate in a precise form all the circumstances
which would fall to be considered but should such an issue ever
be placed before an Attorney-General, it would clearly be proper
and inevitable for him to have due regard to the special position
and duties of a Member of Parliament.
D B Somervell
Law Officers' Department
27 January 1939